Legal Question in Business Law in California

Re: Mediation Clause

Send a letter to the other party telling him/her/it/them that you want to invoke the mediation clause of the contract. You might propose that each pay half if not specified in the contract. Suggest some names of mediators in your area who would be acceptable. Provide a date by which the other party should respond to your letter.

Re: Mediation Clause

PART I: Do you need to file a lawsuit? What you do in this regard could be very high impact. First, what is the statute of limitations (i.e. the deadlines to file or give up rights)? If you have a pending statute of limitations, you need to file to protect your rights. What is in the mediation clause? Under some mediation clauses, you can lose your right to recovery attorney fees if you file a lawsuit before pursuing mediation. There is case law that provides an exception to this penalty in the case of a pending statute of limitations or other situation where you are in immediate danger of losing legal rights. How will this impact the outcome? Mediation, as opposed to arbitration, requires mutual agreement of the parties to reach a resolution. Filing a lawsuit is an adversarial act and may make it more difficult to reach an amiable resolution. On the other side, filing a lawsuit shows that you mean business and that negotiations needs to be in good faith. Generally, I would recommend trying mediation prior to filing, but that would depend on the nature of the dispute and the personalities involved. PART II: How to you start the mediation? You can simply notify the other party in a demand letter that you are requiring performance under the mediation provision in the agreement. Alternatively, if you have a mediator in mind, he/she may be willing to approach the other party and help arrange for mediation. This can be helpful when you have a tense relationship between the parties and want to avoid anger escalation and/or when you have a particular mediator in mind (e.g. someone with a special background helpful to your case) and want to provide an opportunity to sell their skills to the other side. This could backfire if the other side perceives this as pushing a particular mediator and it makes the mediator seem less neutral; however, a good mediator should address this concern with them up front to alleviate this misperception.

Re: Mediation Clause

Mediation is an informal process where parties try to attempt to resolve their disputes by having a neutral expert who is usually an attorney resolve their differences and finding a compromise.

Filing a lawsuit is a good idea if either of the parties resists going to mediation or if the statute of limitations is about to run. You have to file a lawsuit on a breach of contract within 4 years from the date of the alleged breach, or your action is forever barred. If it hasn't been that long, then try to find an attorney/mediator that both you and the other party agree on and have a hearing in front of him.

Thanks,

Arkady